New Court of Appeal mesothelioma case - exorcising an asbestos ghost but resurrecting an old spirit

The Court of Appeal has just brought very welcome news to many mesothelioma & asbestos disease victims & their families.

In Bussey v Anglia Heating Ltd (22 February 2018) the Court of Appeal have effectively exorcised the 48 year-old ghost of the HSE’s TDN13 guidance note. For over six years this had haunted “low exposure” mesothelioma/asbestos compensation claims following the Court’s decision in Williams v University of Birmingham (2011).

Their new decision will hardly open the floodgates for mesothelioma/asbestos disease claims, as thankfully there are only about 2,700 deaths from mesothelioma each year (although 2,700 more than there should be), and effectively the decision just restores the legal position in asbestos/mesothelioma claims, as it was thought to be until 2011.

However, it will mean justice through compensation claims should now be available to many dozens of mesothelioma/asbestos victims/their families who had been exposed to lower levels of asbestos and whose path to compensation for mesothelioma was blocked by Williams and TDN 13.

For over 6 years following Williams the courts had wrongly been treating the HSE’s 1970 TDN 13 note as effectively the touchstone of what could be regarded as a “safe”/”acceptable” level of asbestos exposure,( up until 1983).

This ignored previous Court of Appeal asbestos/mesothelioma decisions like Jeromson, setting quite a high and artificial standard of 2 asbestos fibres/ml over four hours. This was even though at the time virtually no employers would have been aware of this asbestos fibre standard- as it was merely intended as an internal guide to HSE officers as to when they should prosecute for asbestos exposures, and, even if they had known of this asbestos fibre standard, virtually no employers then had the equipment to test for these asbestos fibre levels.

In practice this meant that where no strict statutory duties applied mesothelioma/asbestos claimants needed to prove a relatively high degree of asbestos exposure, to establish negligence, even though only a very tiny asbestos exposure (“one fibre”) was capable of causing mesothelioma. There was therefore a wide gap between the amount of asbestos needed to cause mesothelioma and the amount needed to prove negligent asbestos exposure.

Sadly, many mesothelioma victims fell into that compensation gap and went uncompensated. It proved a particular problem for many mesothelioma/asbestos victims exposed to asbestos in the building trade before May 1970 (the start of the 1969 Asbestos Regulations); many electricians, carpenters and even some plumbers/heating engineers (like Mr Bussey). Although they were often exposed to a fair bit of asbestos in their work, they could not always prove their asbestos exposure exceeded this TDN13 threshold.

Thankfully for mesothelioma/asbestos victims, in Bussey the Court of Appeal corrected their earlier error.

They all agreed if there was a touchstone for proving employer’s negligence for asbestos it was not the blunt instrument of TDN13 but the general principles of the employer’s duty of care, established before then in the judgment of Swanwick J. in Stokes v Guest Keen & Nettlefold (1968) (decided in the very same year that Mr Bussey left Anglia Heating’s employment): “the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know…” This applied just as much to mesothelioma/asbestos compensation claims as to any other compensations claims.

The Court of Appeal held that to decide if asbestos exposure was sufficient to find an employer negligent for causing mesothelioma/asbestos disease involved a two stage test:

1. Should that employer have been aware of that time that their employee’s asbestos exposure from their work gave rise to a “significant” risk of injury - which required only a real, non-fanciful risk, even if statistically small, such as mesothelioma. If asbestos exposure is variable and an employer cannot know the extent of the exposure, he ought to deal with it according to the risks involved in “the potential maximum” asbestos exposure. You need to look at the information which a reasonable employer in the defendant’s position at the relevant time should have acquired about asbestos & mesothelioma risks to decide what risks such an employer should have foreseen. TDN 13 was effectively irrelevant since employers would not have known about it (especially not before it was written in 1970!). However, the infamous Sunday Times headlined story from October 1965 about even small amounts of asbestos causing the “killer disease”, mesothelioma, may have been something an employer should have known about.

2. If they should have been aware of such a risk from asbestos, did they take proper/reasonable precautions to reduce or eliminate the risk? (bearing in mind there was then no known safe level of asbestos exposure to prevent mesothelioma). This involved the balancing exercise set out in Stokes; the cost, practicability and effectiveness of asbestos precautions against the degree of foreseeable risk of injury and the seriousness of that injury if injury occurred, i.e. mesothelioma. That question should be answered by reference to what a reasonable employer would do, i.e. Swanwick J’s hypothetical “reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know”.

They remitted the case to the trial judge to have a re-think. However, they gave strong hints as to why the employer may well have negligently exposed him to asbestos to cause his mesothelioma. They accepted that by late 1965 employers generally ought to have known that exposure to any significant amount of asbestos (well below TDN levels) gave rise to a foreseeable risk of injury through mesothelioma. They also emphasised that where the risk of injury was small but the seriousness of injury if it did occur was high (as with mesothelioma) then if there were straightforward inexpensive measures available to prevent/reduce asbestos exposure and the mesothelioma risk, they should take them. They suggested there were such measures available here- for Mr Bussey to do his cutting up of asbestos products outside and/or wear a respirator when he did so.

The ghost of TDN 13 from 1970 has effectively been defeated by an even older spirit of the late Mr Justice Swanwick. His seminal judgment in Stokes celebrates its 50th anniversary this year and the principles it laid down about the standard of the “reasonable and prudent employer” are still very much alive in the law today. It is largely thanks to the application of his judgment that mesothelioma/asbestos victims in many “low exposure” asbestos cases should now see compensation in their mesothelioma claims. So I raise a toast to Mr Justice Swanwick: may he rest in peace, but may his judgment continue to live on ever after him!

Jeremy Horton is a Solicitor and Partner at Brachers, specialising in mesothelioma and other asbestos compensation claims in Kent, Medway, Essex & beyond. Jeremy is passionate about helping asbestos disease victims and their families achieve fair compensation as quickly as possible. He is the only APIL Accredited Occupational and Asbestos Disease Specialist solicitor in Kent, Medway, Essex, Surrey or Sussex. Jeremy can be contacted by email or on 01622 680415.